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Kenneth Schultz v. State of California

March 28, 2012

KENNETH SCHULTZ,
PLAINTIFF,
v.
STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND (ECF NO. 1) AMENDED COMPLAINT DUE WITHIN THIRTY DAYS

SCREENING ORDER

I. PROCEDURAL HISTORY

Kenneth Schultz (Plaintiff), a state prisoner in Corcoran State Prison (CSP) where the events in issue occurred, is proceeding pro se and in forma pauperis in this June 15, 2011 civil rights action pursuant to 42 U.S.C. § 1983. (ECF No. 1)

Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 5.)

Plaintiff's Complaint is now before the Court for screening.

II. SCREENING REQUIREMENT

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous, malicious," or that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that ... the action or appeal ... fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

Section 1983 "provides a cause of action for the 'deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393--94 (1989).

III. SUMMARY OF COMPLAINT

Plaintiff claims that in January 2009 he began to experience progressively worsening, widespread pain which interfered with sleep. (Compl. p. 4, ECF No. 1.) A prison clinic blood test appeared normal. (Compl. at 4.) Subsequently, Plainitff asked Defendant Dr. Kim at the clinic for further tests and pain medication. Dr. Kim refused, saying he was tired of inmates self-diagnosing. He told Plaintiff to learn to live with the pain. (Id. at 5.) Dr. Kim subjected Plaintiff to verbal abuse in apparent retaliation for Plaintiff's efforts to secure proper and adequate medical treatment. (Id. at 9.)

Plaintiff filed a prison grievance (CDCR Form 602), seeking investigation and medical treatment. (Id. at 5.) He was not allowed to speak during the First Level appeal interview. (Id. at 6). His Third Level Appeal was denied. (Id. at 6, 48.)

He was later examined by prison doctor, Dr. Kazan, who diagnosed probable polymyalgia rheumatica (Id. at 6) for which Plaintiff is being treated. (Id. at 22.)

Plaintiff names Defendants the State of California Department of Corrections and Rehabilitation (CDCR) and J. Kim MD. (Id. at 1-2.)

Plaintiff seeks injunctive relief ordering medical testing, treatment and medication, general and punitive damages, attorney's fees and costs. (Id. at 12.)

IV. ANALYSIS

A. Pleading Requirements Generally

To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir.1987).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief ...." Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than ...


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